Not Your Father s Islamic State: Islamic Constitutionalism for Today s Sharia- Minded Muslims

Transcription

1 Not Your Father s Islamic State: Islamic Constitutionalism for Today s Sharia- Minded Muslims Asifa QURAISHI-LANDES University of Wisconsin Abstract This paper presents a structure for Islamic constitutionalism that is inspired by pre-modern Islamic jurisprudence and Muslim history, yet designed for contemporary realities. This structure is conceptually different from the typical Islamic state imagined by modern political Islam movements because it is built on legal pluralism rather than legal centralism. Unlike the centralized European nation-state systems inherited by most Muslim-majority countries, the constitutional structure presented here is built upon the separation of lawmaking power that characterized Muslim legal and political systems for centuries: a separation between (1) siyasa laws made by rulers in furtherance of the public good (maslaha) and (2) fiqh laws articulated by religious legal scholars based on scriptural interpretation and existing in a diversity of legal schools. Understanding sharia as an Islamic rule of law (rather than merely a collection of rules), encompassing both fiqh and siyasa, this paper builds an Islamic constitutional structure on the powerful foundation of legal pluralism represented by the fiqh-siyasa bifurcation of law. There are three essential features of the proposed structure: (1) government political action must be based on the public good, as determined by democratic means, (2) a diverse marketplace of fiqh (and other religious law) should exist in a parallel legal realm, available as a voluntary opt-out of government law, and (3) a sharia check reviewing the Islamic legitimacy of political action should be based on the purposes (maqasid) of sharia. Together, these three pillars form the essential structure for a system of government that enables Muslims to have sharia as the law of the land, but which is not theocratic because it does not allow a state to impose its preferred religious doctrine upon the entire population. It also opens up new solutions to longstanding conflicts between secular and religious forces in Muslim-majority countries today, such as the purported incompatibility of Islam and democracy and apparent conflicts between sharia and human rights. These solutions have been missed in global discourses about Islamic government so far, because Eurocentric concepts of law (especially religious law) currently dominate the field. This paper challenges these concepts by showing how an Islamic constitutionalism that is not secular and not theocratic is not impossible. 1

2 I. Introduction The Islamic state of modern political Islamism starts with the central state as the location of all legal authority and the guardian of society s orthodoxy. Islamist political advocacy usually focuses on ways to bring sharia into the law of the modern state, typically through legislation and constitutional amendment. This brings them into regular battle with secular forces seeking control over the same political space. Islamists and secularists both operate with a presumption of legal monism, where all law is controlled by a central government. But this is not how law and legal authority always operated in these societies. Legal monism is an attribute of the European nation-state, brought to most Muslim-majority lands with colonialism. Nevertheless, Islamic state movements seem content on working to influence state power rather than exploring ways to diversify that power itself. Even reformist Muslim scholars and activists limit their attention to doctrinal, rather than structural, creativity about sharia. In other words, there is little, if any, new Islamic constitutional theory. This paper is an early expedition into this territory. It describes what a shariabased government could look like if sharia is understood as an Islamic rule of law rather than a collection of rules. This takes sharia all the way up the theoretical ladder to the rung of constitutional theory, opening up new ways of thinking about the allocation of legal and political power and how to create checks and balances on that power. The result is a framework for Islamic constitutionalism that is based on sharia but is not about Islamizing the nation-state. Rather than accepting the current constitutional norm that locates all legal authority in a central sovereign power and then debating whether that power should or should not be used to enforce sharia (and if so, which version) the 2

3 proposed framework shows that sharia-based government can mean something much more profound and constitutionally creative than anything that exists right now. This paper proposes a structure for Islamic constitutionalism that is inspired by pre-modern Islamic jurisprudence and Muslim history, yet designed for contemporary times. It is conceptually different from the typical Islamic state imagined by modern political Islam movements because it is built on legal pluralism rather than legal centralism. Unlike the centralized nation-state system inherited by most Muslim-majority countries, the present constitutional structure is built upon the separation of lawmaking power that had previously characterized Muslim legal-political systems for centuries: a separation between (1) siyasa laws made by rulers in furtherance of the public good (maslaha) and (2) fiqh laws articulated by a diversity of religious legal scholars based on their interpretation of scripture. This paper concludes that the legal pluralism represented by the classical bifurcation of fiqh and siyasa law should be an essential feature of any Islamic constitutional theory, and is largely missing in the world today. Lacking a clear differentiation of siyasa from fiqh has caused many Muslim-majority countries to create near-theocratic rule, where the government can declare the Islamic law of the land, often discriminating against those who disagree. For a religion that has never had a church, this is a dangerous and ill-fitting change. Offering an alternative, this paper begins with the idea of sharia as an Islamic rule of law encompassing both fiqh and siyasa and builds an Islamic constitutional framework based on that legal pluralism, translating and updating the fiqh and siyasa realms as appropriate for contemporary realities. There are three essential features of the proposed structure: (1) government political action must be based on the public good, as determined by democratic means, 3

4 (2) a diverse marketplace of fiqh (and other religious law) should exist in a parallel legal realm, available as a voluntary opt-out of state law, and (3) a sharia check reviewing the Islamic legitimacy of political action should be based on the purposes (maqasid) of sharia. Together, these three pillars form the essential structure for a system of government that enables Muslims to have sharia as the law of the land, but is not theocratic because it does not allow a state to impose its preferred religious doctrine upon the entire population. It also opens up new solutions to longstanding conflicts between secular and religious forces in Muslim-majority countries today, such as the purported incompatibility of Islam and democracy and apparent conflicts between sharia and human rights. These solutions have been missed in global discourses about Islamic government so far because Eurocentric concepts of law (especially religious law) currently dominate the field. This paper challenges these concepts by showing that an Islamic constitutionalism that is not secular and not theocratic is not impossible. II. Thinking Outside the Islamic State Box Political Islamic movements (also called Islamism ) work for the Islamization of their state. They often support sharia legislation and constitutional provisions requiring sharia to be a source of legislation and a check on state action. 1 These legal markers often carry popular support in Muslim-majority countries, a phenomenon reflected in polls documenting widespread support for sharia as the law of the land in 1 For a discussion of constitutional clauses setting up sharia as a/the source of legislation in several Muslim-majority countries, see Clark Lombardi, Constitutional Provisions Making Sharia A or The Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter? 28 American University International Law Review 733 (2013). On the history and rise of sharia-based constitutional repugnancy clauses, see Dawood Ahmed & Tom Ginsburg, Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions, 54 Virginia Journal of International Law 1 (2013). 4

5 Muslim-majority countries around the world. 2 In response, secular-minded citizens and observers point to conflicts between legislated sharia and global human rights norms, often actively opposing these movements on the ground that Islamization threatens individual rights. It is thus not surprising that strong tensions between secular and Islamist forces pervade social and political life in many Muslim-majority countries, especially on highly-publicized issues such as women s rights and freedom of expression and belief. So far, the most popular approach to resolving these tensions has been that of liberal or reform Islam. Social and political actors following this approach urge Muslim governments to adopt liberal and modern interpretations of sharia instead of traditional and conservative ones that conflict with global norms, as a way to bridge Muslim desires for sharia with secular concerns for individual rights. 3 This strategy is popular with many because it offers Islamically-grounded arguments for gender equality, freedom of expression, and other global norms of civil and human rights. But a liberal sharia resolution of the Islamist-versus-secularism fight can be short-lived. No matter how persuasive an argument is made for the state to adopt liberal human-rights-affirming sharia interpretations, there is no conclusive reason to insist that others agree. Thus liberal Islam advocates in a given country may think they have solidly enacted, for example, woman-empowering sharia interpretations of family law only to see an election bring a new political majority passing new legislation based on sharia interpretations that are more restrictive of women s rights. In short, a political solution based on liberal Islam 2 See, e.g., Pew Forum on Religion and Public Life, The World s Muslims: Religion, Politics and Society (2013), available at 3 A full summary of liberal Islamic advocacy is far beyond the scope of this paper, but a useful introduction to a range of liberal Islamic thought can be found in Liberal Islam: A Source Book (Charles Kurzman, editor) (Oxford University Press, 1998). 5

6 is ultimately unsatisfying even to liberal Muslims because it leaves rights protections vulnerable to shifting political majorities. Moreover, the social and political consequences of this phenomenon can be devastating to everyone. It can turn legislative, executive and judicial houses of Muslim states into battlegrounds for liberal and conservative (and everything in between) interpretations of sharia, each side hoping their preferred view will be the one imposed on everyone else through the power of the state. As a result, many Muslim-majority countries today seem doomed to repeat endless cycles of religiously-motivated politics. In the face of all this, strict secularists seem well-positioned to argue that the only way out is a full and complete separation of religion from the state. 4 But what if religion is not the problem? What if these cycles of religious politics are caused not by the association of Islam with the state, but instead by the nature of the state itself? To understand the point, we have to step back a bit to better understand the nation-state canvas upon which this political picture is drawn. The nation-state that is ubiquitous in the world today is a product of European history. It is centered on the idea that a culturally and ethnically distinct people (a nation ) form a territorially-bound sovereignty that gives legitimacy to a governing political power. This political power is characterized by legal monism and legal centralism - the idea that all law comes from a central state. The European nation-state model of government was imported into the Muslim world with colonialism. In countries colonized by European powers, the pre-existing Muslim legal and political systems were dismantled and replaced with national legal 4 One example among many is Abdullahi Ahmed An-Na im, Islam and the Secular State: Negotiating the Future of Shari a (Oxford University Press 2008). 6

7 codes and judicial systems. With independence in the mid-twentieth century, the new Muslim-majority states in Arabia, Africa, Asia, and Eastern Europe retained most of the law and legal systems set up by their former European rulers, now woven into the socioeconomic infrastructure of these countries. 5 In virtually every Muslim-majority country, whether it was actually colonized by a European power or not, European nation-state legal centralism became the norm. Some Muslims in these in these newly independent states sought to remedy the wound of the colonialist purging of sharia in Muslim lands by organizing themselves into social and political Islamist movements. But what is remarkable about these Islamist movements from the perspective of Islamic constitutional theory is that in their work to Islamize their governments they did not question the European nation-state formula. Instead, they concentrated their efforts on making the central state Islamic. As Sherman Jackson puts it, liberal or illiberal, pro- or anti-democratic, the basic structure of the nation-state has emerged as a veritable grundnorm of modern Muslim politics. The basic question now exercising Muslim political thinkers and activists is not the propriety of the nation-state as an institution but more simply whether and how the nation-state can or should be made Islamic. 6 Even those calling for an Islamic state did not change the nation-state presumptions of legal monism. In Jackson s words, the Islamic state is a nation-state ruled by Islamic law. 7 5 See Wael Hallaq, An Introduction to Islamic Law (Cambridge University Press, 2009), (Chapter 7, Colonizing the Muslim World and its Shari a ). 6 Sherman Jackson, Islamic Reform Between Islamic Law and the Nation-State, in The Oxford Handbook of Islam and Politics 42 (John L. Esposito & Emad El-Din Shahin, editors.) (Oxford University Press 2013). 7 Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-din al-qarafi XIV (E.J. Brill 1996). 7

8 This is a dangerous turn of events. Monolithic legal positivism has shrunk the Muslim constitutional horizon to the narrow realm of state law, contributing to dangerous power monopolies in contemporary Muslim governments. All law in these countries is now defined by the state, and any laws not created or sanctioned by the state do not have any enforceable legal status for the people. 8 The more it is insisted that all law comes from the state, the more everyone is forced into that arena to acquire any recognition and protection for laws that are important to them - religious laws included. This is the reason for sharia legislation. Following the legal monist presumption that the central state controls all law, Islamist movements consistently look to state lawmaking bodies to officially recognize sharia usually in the form of legislating it. 9 This focus represents a rather stunning amnesia. Rather than looking to Islamic history for alternative arrangements of legal authority, modern Islamists instead reinforce the European nation-state concept that state power is what gives law its authority, and that the state has the responsibility of establishing the substantive content of sharia in these countries. 10 What these movements fail to recognize is that, far from restoring sharia to those places from which it was removed, these sharia legislative projects have 8 For a commentary on this phenomenon in a discussion of legal pluralism, see Sherman Jackson, Legal Pluralism Between Islam and the Nation-State: Romantic Medievalism or Pragmatic Modernity? 30 Fordham International Law Journal 158 ( ). 9 Frank Vogel comments that this is apparent when Islamic thinkers assume that to return to sharia one should just amend here and there the existing positive-law constitutions and statutes; or assert that a modern state is Islamic if its legislature pays respect to general Islamic legal precepts, such as bans on prostitution or gambling. Frank Vogel, Islamic Law and Legal System: Studies of Saudi Arabia 219 (Brill 2000). 10 See Mohammad Hashim Kamali, Methodological Issues in Islamic Jurisprudence, 11 Arab Law Quarterly 3, 9 (1996) ( The government and its legislative branch tend to act as the sole repository of legislative power... The advent of constitutionalism and government under the rule of law brought the hegemony of statutory legislation that has largely dominated legal and judicial practice in Muslim societies.); Sherman Jackson, Shari'ah, Democracy, and the Modern Nation-State: Some Reflections on Islam, Popular Rule, and Pluralism, 27 Fordham International Law Journal 88 (2003). 8

9 fundamentally transformed the nature of sharia s engagement with these societies. To understand how, it is necessary to review some basic Islamic legal theory and history. A. The Importance of Fiqh Diversity The core principle of Islamic jurisprudence is that sharia, God s Law, cannot be known with certainty. Literally meaning street, or way, sharia in the Quran denotes the perfect Way of God - the way God advises people to live a virtuous life. This Way of God is described in the Quran and Prophet Muhammad s (PBUH) life example (sunnah), but of course not everything is clearly answered in those two sources, so Muslim scholars perform ijtihad (rigorous legal reasoning) to extrapolate from those sources more detailed guidance for life according to sharia. This guidance comes in the form of detailed legal rules called fiqh (literally, understanding ). The epistemology of fiqh is important. Fiqh lawmaking happens with an awareness of its own fallibility. The fiqh scholars (fuqaha) acknowledged that their work of ijtihad is a fundamentally human endeavor that always carries the possibility of error. 11 Their use of the term fiqh - literally meaning understanding - is telling. It linguistically signals that every fiqh rule is only a scholar s best understanding of God s Law, nothing more. In short, although their job is to articulate God s Law, the fuqaha are careful never to speak for God. 11 See Bernard Weiss, Interpretation in Islamic Law: The Theory of Ijtihad, 26 American Journal of Comparative Law 199 (1978). The fuqaha took very seriously the famous hadith of the Prophet (PBUH) that the mujtahid (person who does ijtihad) and arrives at the correct answer will receive two rewards from God, while the mujtahid who arrives at the wrong answer will get one reward from God. See Sahih Bukhari 6919; Sahih Muslim Among other things, the significance of that hadith is that, here in this lifetime, each scholar has to respect the fiqh conclusions of other scholars as potentially correct articulations of sharia. 9

10 Fiqh lawmaking is based upon an acceptance of the impossibility of knowing God s Law with certainty, but not the futility of trying. 12 This simultaneously humbling and empowering attitude among the fuqaha resulted in a natural and unavoidable diversity of fiqh doctrines. Because there is no way to know for sure which fiqh conclusions are correct (and there is no Muslim church to designate favorites), all fiqh rules are deemed to be equally valid understandings of sharia, even though they often contradict each other. As more and more fiqh scholars wrote more and more fiqh rules, several identifiable schools of law emerged, each with a different methodology of interpretation (once numbering in the hundreds, there remain about five dominant in the world today). 13 In short, for a Muslim, there is one Law of God, but there are many versions of fiqh articulating that Law here on earth. Thus, the tangible reality of sharia in the world is not a monolithic single code of law, but rather the different doctrines of many fiqh schools, each equally valid representations of the Law of God. In pre-modern Muslim systems, the application of fiqh was mediated through this diversity. Fiqh law was accessible to the public in a way that gave individual Muslims choice over which school of fiqh law they would follow. To summarize a vast temporal and geographic history, individual Muslims typically identified with one fiqh school and sought out fuqaha of that school for guidance when in need of specific legal answers, 12 See Khaled Abou El Fadl, Speaking in God s Name: Islamic Law, Authority and Women (Oneworld Publications 2001) at 39 ( Islamic legal methodologies rarely spoke in terms of legal certainties (yaqin and qat ). The linguistic practice of the juristic culture spoke in terms of probabilities or the preponderance of evidence.... Muslim jurists asserted that only God possesses perfect knowledge human knowledge is tentative. ). For more on this concept in the various schools of Islamic jurisprudence, see Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Lockwood Press 2013). 13 From hundreds of early fiqh schools, five remain famous today: the Maliki, Hanafi, Shafi i, Hanbali, and Ja fari (Shi a). Fiqh doctrinal differences often fall along school lines, although there are always minority views within each school. For more on these different fiqh schools and their respective methodologies compared with the methodologies of American constitutional interpretation, see Asifa Quraishi, Interpreting the Qur an and the Constitution: Similarities in the Use of Text, Tradition and Reason in Islamic and American Jurisprudence, 28 Cardozo Law Review 67 (2006). 10

11 such as whether or not a contract was valid, or how to distribute inheritance proceeds. The fuqahas answers to these individual questions came in the form of legal responses (fatwa) which were voluntarily self-enforced by the questioner herself. When a fiqhbased dispute arose between two or more Muslims (for example, a property dispute between adjacent neighbors), they would typically seek out a ruler-appointed qadi (judge) from their fiqh school to resolve the dispute, and the qadi s ruling would be enforced by the executive power of the Muslim ruler. This was possible because Muslim rulers generally accommodated the fiqh diversity of their populations by appointing a variety of judges from different fiqh schools, according to the demographics of each geographic area. 14 Importantly, rulers did not alter the content of the fiqh applied in these courtrooms, nor did they consolidate the rules of divergent fiqh schools to create one fiqh code applied by all the qadis in the land. Muslim rulers understood that, even though they were enforcing fiqh rules through their executive power, their power extended no further. 15 Substantive control over the content of fiqh laws always remained with the 14 Significantly, Muslim governments did not view this fiqh diversity as a threat to their sovereignty. See Jackson, supra note 10, at 106 ( ) ( the pre-modern Muslim state... did not equate the integrity of the State with the exercise of an absolute monopoly over lawmaking or the ability to impose a uniform code of behavior on the entire society. ). Which fiqh school would resolve conflicts between Muslims of different fiqh affiliations differed according to the details of each time and place, a topic too large to summarize here, but, generally speaking, the resolution is similar to the way that conflict of laws rules govern how disputes between citizens of different nations or states is resolved today. 15 Fuqaha autonomy over the interpretation of scripture is a result of the mihna, an attempt by early Muslim rulers to control theological belief of the Muslim population. Fuqaha resistance ultimately prevailed, leading to the separation of fiqh and siyasa authority that became typical of Muslim societies thereafter. See Marshall G.S. Hodgson, The Venture of Islam: Conscience and History in a World Civilization I: The Classical Age of Islam (UCP, Chicago 1974) , ; Abou El Fadl, supra note 12, at 26 ( after the age of mihna... [the fuqaha, or Muslim legal scholars] establish[ed] themselves as the exclusive interpreters and articulators of the Divine law... [T]he inquisition was a concerted effort by the State to control the juristic class and the method by which Shari ah law was generated. Ultimately, however, the inquisition failed and, at least until the modern age, the [fuqaha, or Muslim legal scholars] retained a near exclusive monopoly over the right to interpret the Divine law. ). 11

12 fuqaha, outside of ruler authority. 16 This system created a to each his own quality of religious law in these societies that included not just the many Muslim fiqh legal schools, but also the religious laws of Christians, Jews, and others. In this way, individuals in premodern Muslim systems could receive official recognition of their preferred religious law without having to impose it on everyone else. 17 B. The Nature of Siyasa Authority Muslim rulers deference to fuqaha authority over the substantive content of fiqh was not out of politeness. It was the natural result of a unique separation of legal authority in pre-modern Muslim lands that has all but disappeared today. In pre-modern Muslim legal systems, there were two types of law: siyasa, created by the rulers, and fiqh, created by the fuqaha. 18 These two types of law operated in an interdependent relationship with each other, but they came from very different sources and stood on very different grounds of legitimacy. Unlike fiqh, siyasa laws were not extrapolated from scripture by religious legal scholars. Muslim rulers crafted siyasa according to their own 16 See Mohammad Fadel, The True, the Good, and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law, 21 Canadian Journal of Law and Jurisprudence ), at 46 ( [t]his area of the law was entirely independent of theological expertise, and accordingly, legitimized rule-making for the vindication of public interests rather than the vindication of express revelatory norms. ); Khaled El Fadl, Islam and the Challenge of Democratic Commitment, 27 Fordham Int l Law Journal 4 (2003), at 64 ( Only the jurists [were] qualif[ied] to investigate and interpret the Divine will... However, pursuant to the powers derived from its role as the enforcer of Divine laws, the State was granted a broad range of discretion over what were considered matters of public interest known as the field of al-siyasah al- Shar iyyah. ). 17 In fact, pre-modern fuqaha firmly resisted ruler attempts to enforce uniform fiqh doctrine on Muslim populations. For example, Abbasid Caliph al-mansur ( AD/ AH) approached Malik ibn Anas (eponym of the Maliki fiqh school) to adopt Malik s law book, al-muwatta, as the official law of the Empire, but he refused. According to one report, Malik asserted that it would be too severe to force the people of different regions to give up practices that they believed to be correct and which were supported by the hadith and legal opinions that had reached them. Umar Faruq Abd-Allah, Malik's Concept of 'Amal in the Light of Maliki Legal Theory (Ph.D., University of Chicago 1978) at See Asifa Quraishi, The Separation of Powers in the Tradition of Muslim Governments, in Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Tilmann Roder, Rainer Grote & Katrin Geenen, eds., Oxford University Press, 2011); Frank Vogel, supra note 9, at 31 (describing siyasa and fiqh as macrocosmic and microcosmic law). 12

13 philosophies of government and ideas about how best to maintain public order. Siyasa laws were typically pragmatic, governance-related laws, covering topics like taxes, security, marketplace regulation, and public safety i.e., things necessary for public order, but about which the scripture says little. 19 Notably, siyasa rulers were specifically expected not to draw their rules from scripture, but from their own opinions of what is necessary for social and political order. 20 The result was religious legitimacy for Muslim rulers to issue laws and perform the duties of everyday governance and law enforcement without specific reference to, or grounding in, the sacred texts. 21 Siyasa lawmaking by temporal holders of power ultimately came to be seen as Islamically legitimate because of the widespread consensus in Islamic jurisprudence that the ultimate purpose of sharia is to promote the welfare of the people (maslaha). 22 Because rules extrapolated from scripture cannot cover all the day-to-day public needs of civil society, the fuqaha recognized that another type of law besides fiqh was necessary to fully serve the public good (maslaha amma). Scriptural study cannot identify, for example, what is a safe speed limit or what regulations will ensure food safety. The only institution capable of creating and enforcing these sorts of rules is the power that controls the use of force that is, the siyasa power held by rulers. Thus, in the literature of 19 See Vogel, supra note 9 at 52, ; Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (OUP 2012) (describing the mixed fiqh-siyasa role of the muhtasib). 20 Fadel, supra note 16, at 55 ( [t]his area of the law was entirely independent of theological expertise, and accordingly, legitimized rule-making for the vindication of public interests rather than the vindication of express revelatory norms. ); Mohammad Fadel, Adjudication in the Maliki Madhhab: A Study of Legal Process in Medieval Islamic Law (1995) (Ph.D. thesis, University of Chicago) (describing the political judgments of the siyasa realm as not derived directly from God s revelation, but rather... upon a discretionary judgment of what course of action would result in the maximum welfare of the community ); Abou El Fadl, supra note 16, at (describing Muslim ruler broad range of discretion over matters of public interest). 21 Sadiq Reza, Torture and Islamic Law, 8 Chicago Journal of International Law 21 (2007), at Vogel, supra note 9, at 529 ( The whole basis and foundation of sharia is to serve the welfare of God s servants in this world and in the hereafter. ). For more detail on maslaha, see Felicitas Opwis, Maslaha and the Purpose of the Law: Islamic Discourse on Legal Change from the 4 th /10 th to 8 th /14 th Century 1-8 (2010). 13

14 Muslim political science that came to be known as siyasa shariyya, fiqh scholars agreed that it is fundamental to a sharia-based system that rulers exercise siyasa lawmaking power for the purpose of serving the public good (maslaha amma). 23 Though the siyasa shariyya scholars differed widely in their ideas about the proper sharia scope of siyasa power, the practical impact of siyasa shariyya scholarship as a whole was to expand the concept of sharia to include pragmatic considerations of good governance. This genre of Islamic legal literature solidified the idea that sharia as God s Law is meant to cover more than just the fiqh elaboration of scriptural rules. Siyasa s lack of direct grounding in sacred texts is important for Islamic constitutionalism because it illustrates how sharia can work as an Islamic rule of law rather than just a collection of (fiqh) rules. Even though siyasa laws were not derived directly from scripture, pre-modern Muslims did not think of siyasa as outside of sharia. Instead, they considered fiqh and siyasa both to be components of their rule of law systems. As understood in pre-modern Muslim political theory and practice, rulers and religious legal scholars together serve sharia, through their respective jobs, each serving different roles based on different sources of legitimacy. Specifically, the job of the rulers is to make and enforce laws that serve the public good, and the job of the scholars is to use ijtihad to extrapolate rules from the Quran and Sunnah. 23 Vogel, supra note, 9, at 529 ( as understood by [fiqh scholars] the ruler possesses authority under siyasa doctrine to act freely to pursue the welfare of the [community] as he understands it ). Shihab al-din al- Qarafi, for example, described siyasa as that power entrusted to the government to improve society. Exercises of this power were valid insofar as they were undertaken with the purpose of enhancing the community s welfare, and did so improve it in fact. See Fadel, supra note 16, at 58 (2008) (quoting Shihab al-din Ahmad b. Idris al-qarafi, al-furuq vol. 4 at 39); see also generally Ovamir Anjum Politics, Law, and Community in Islamic Thought: The Taymiyyan Moment (2012) (comparing a great number of siyasa shariyya scholars on the topic of Islamic governance, including their divergent views on the reason for and nature of the siyasa ruler). 14

15 To use contemporary terminology, legal pluralism not legal monism was the constitutional structure of pre-modern Muslim governments. 24 This structure was necessitated by the epistemology of Islamic jurisprudence: Muslim legal systems had to figure out how to accommodate the unavoidable and inherent diversity of fiqh. After all, if the different doctrines of the different fiqh schools are all equally valid, it is not possible to just declare one of them the law of the land (and those who tried, failed). So, unlike law in Europe, legal centralism simply was not an option. Muslims had to figure out another way to set up their legal systems, and their solution was two types of law: siyasa (made by the ruler) and fiqh (made by the scholars). Both had authority over the people, but in very different ways. Siyasa was to serve general public needs such as safety and justice and order, whereas fiqh was to provide rules to guide Muslims in living a life according to the will of God. Siyasa was enforced by the state through use of force, whereas fiqh was partly enforced by the state and partly self-enforced, depending on the nature of the issue. 25 In sum, the rule of law in pre-modern Muslim lands depended upon the existence and complementarity of both types of law, siyasa and fiqh. C. The Problems with Legal Monism for Islamic Government We can now see more clearly why the nation-state may be the source not the playing field of the destructive cycles of religious politics in Muslim-majority countries today. The dominance of nation-state legal monism in Muslim politics has obscured what is arguably the most constitutionally relevant aspect of Islamic history: 24 In Sherman Jackson s words, legal pluralism was to the premodern Muslim state what legal monism has become to the modern nation-state. Jackson, supra note 6, at It was self-enforced when individual Muslims sought out fatwas for their personal legal questions. It was enforced by the state if the fiqh was being applied through the judgement of a qadi. 15

16 siyasa respect for a separate and autonomous realm of fiqh law. This respect enabled a bifurcation of legal authority between fiqh and siyasa law that directed pre-modern Islamic government away from theocratic rule. Because fiqh and siyasa each play separate roles in a sharia rule of law system, pre-modern Muslim governments worked with the reality of these different legal realms rather than using their political power enforce one singular version of religious law on everyone. The contemporary phenomenon of sharia legislation ignores this fundamental feature of pre-existing Muslim legal systems. Rather than thinking of sharia as a rule of law system composed of both fiqh and siyasa legal realms, the Islamization of Muslim governments has amounted to collapsing sharia into just fiqh, and then looking to state power (today s siyasa) to bring fiqh into the political realm. In pre-modern Muslim systems, the sharia mandate of siyasa power was quite different: it was not to enact and impose fiqh doctrine on everyone, but rather, to maintain public order and serve the public good. In short, state lawmaking for the public good not legislating fiqh doctrine is the Islamic duty of the ruler in a sharia rule of law system. Moreover, so-called sharia legislation, does not really legislate sharia at all. It merely legislates one (or several) among many fiqh possibilities. Because every fiqh rule is fallible, no Muslim government can claim that the fiqh rule they have enacted is in fact God s Law. Therefore, the best that can be claimed of so-called sharia legislation is that it has enacted its preferred understanding of sharia from among many equally valid options. But to call such legislation sharia is to use religion in a politically manipulative manner implying divine mandate for rules that are in reality fallible human interpretations of divine law. 16

17 Another way to see this is to see that sharia legislation is actually an act of siyasa. The adultery laws in Nigeria and Pakistan, the fiqh-inspired marriage and divorce laws in the family law codes of Egypt and Morocco all are acts of siyasa lawmaking because they are laws created by a political power. And, because no fiqh rule can claim to be the correct understanding of sharia, enacting one and not another must necessarily be on some basis other than it being divine law. Usually, it is some combination of political majorities, social pressure, and administrative preference (whether this is admitted publically or not). So, even when they legislate sharia, Muslim governments are doing a purely siyasa job: making prudent choices given the practical realities of their public lawmaking systems, ostensibly to serve the public good. In itself, there is nothing wrong with this after all, making pragmatic decisions to serve the public good is exactly what siyasa is meant for. The problem with sharia legislation is that by calling it sharia its promoters pretend that this is not happening. Sharia legislative projects are typically presented to a Muslim public as if they are obligatory divine law, with no mention of the human element between God and the statute books. Unfortunately, most religious Muslims do not see this as a problem. To the contrary, because most Muslims around the world have an incomplete understanding of sharia, fiqh pluralism, and the role of siyasa before colonialism, 26 they usually do not question sharia legislation, believing to do so would be to question God s Law. Many even defend sharia legislation as if defending their very faith, seeing opponents of 26 See for example, Tamir Moustafa, Islamic Law, Women s Rights, and Popular Legal Consciousness in Malaysia, 38 Law and Social Inquiry 168 (2013) (showing, based on recent polling data, lay Muslim ignorance of core epistemological commitments in Islamic legal theory, such as its commitment to pluralism and the centrality of human agency in fiqh lawmaking). 17

18 sharia legislation as enemies of Islam. 27 Thus, because it is so often immune from popular criticism, amendment, and most of all, repeal, sharia-based legislation has a powerful (and often manipulative) strategic advantage in Muslim-majority countries. Sadly, and ironically, this has added a theocratic quality to these legal systems. Muslim governments can now occupy the powerful position of being both author and enforcer of what is sharia. This creates dangerous potential for state-enforced religious dogma, a situation exacerbated by the creation of sharia courts with final authority to interpret the authoritative meaning of state-enacted sharia law. Seen in greater historical and theological context, this is an odd thing for Muslims to do. For centuries, Muslims rejected the establishment of any clergy with the power to declare the Islamic rule on any given topic. Today, however, sharia courts have the sole authority to interpret the meaning of sharia for the public (and if it follows stare decisis, this includes the future public). This is arguably the closest thing to a Muslim state church that has ever existed. It is important to appreciate that it is not sharia itself that has caused this situation. It is rather, the result of failing to think of sharia as a rule of law, encompassing both fiqh and siyasa realms. Often using sharia and fiqh as interchangeable terms, Islamist movements not only miss the important role of siyasa in a sharia-based system but also contribute to this new theocratic trend by inserting (selected) fiqh rules into a nation-state structure that has exclusive control over all law. Thus, sharia legislation is a wholly modern, post-colonial invention: it depends upon the centralized power and legal monism of the nation-state to operate. These governments would not be able to uniformly enforce 27 For details on this phenomenon in the context of Islamic law and women s rights, see Asifa Quraishi, What if Sharia Weren t the Enemy? Rethinking International Women s Rights Advocacy on Islamic Law, 22 Columbia Journal of Gender and Law 173 (2011). 18

19 their selected fiqh rules if the pluralist bifurcation of fiqh and siyasa had survived. The theocratic consequences of this status quo should offend not just secularists who feel that state law should be separated from religion but also religious Muslims because it disrespects fiqh pluralism and lets the state claim control over what used to be left to the autonomy of independent fuqaha. It is also important to realize that liberal Islamic advocates are not immune to this charge. Political Islamic movements also promote theocracy because they promote state enactment of liberal interpretations of sharia. This is a theocratic move a progressive and liberal one, perhaps, but theocratic just the same. 28 This is why liberal Islam as a political movement cannot make lasting change. It does not challenge the fundamental constitutional feature that frequently leads to their defeat: state control over which fiqh doctrine will be enforced upon the entire population. As long as the power to define sharia lies with those in political power, it is theocratic. And any theocracy is dangerous, even one with moderate laws, because it uses the power of the state s sword while claiming to act for God. On this point there is common ground between modern human rights norms and classical Islamic jurisprudence. In contrast, the framework for Islamic constitutionalism presented here is specifically designed to prevent theocracy. It is based on an appreciation of the fallibility 28 As Mohammad Fadel has put it, this modernist solution is simply the other side of the dilemma...: both of them assume that the norm of revealed law, once properly derived from revelation, would have to function as the rule recognized by the temporal legal system... Islamic modernists because they are confident in their ability to identify the correct substantive norm, are unconcerned that they are substituting their own judgment for that of God s. Mohammad Fadel, Is There Such a Thing as an Islamic Public Law, and Does Its Existence Matter for Post-Authoritarian Arab Regimes? (forthcoming, Yearbook of Middle Eastern Law, 2015). Although Fadel s terms are slightly different than the ones used in this model (he uses sunni public law where this model would use siyasa, and rational good where it would say public good ), Fadel advocates along lines similar to that proposed here. In his words, there is a much firmer ground on which modernizing reforms can be justified other than modernist religious interpretation: they are the product of legitimate public deliberation on what constitutes the rational good of the community and they do not violate any peremptory norms of Islamic law, even if they make major or minor revisions to the scope of rights and the manner by which they can be exercised. Id. at

20 of any understanding of sharia, especially those holding police power over others. It starts with the concept of sharia as rule of law rather than a collection of rules. It shows that the way to prevent the theocratic tendencies of current Islamic states is not by liberal reform of sharia legislation. Rather, the entire project of legislating sharia needs to be taken off the table altogether. This is accomplished by rejecting the legal monism of the nationstate, and reclaiming the legal pluralism illustrated in the historical Muslim bifurcation of fiqh and siyasa law. It is to that framework for a re-claimed and renewed Islamic constitutionalism that we now turn. III. Islamic Reconstitutionalism: Three Essential Pillars The Islamic constitutional structure presented here is based on the idea of sharia as an Islamic rule of law rather than a collection of rules. It is based on three essential pillars, each inspired by the lessons of Muslim legal and political history summarized above. The first pillar is that all government action must be based on the public good, as determined by democratic means. This draws upon the principle articulated by siyasa shariyya scholars that siyasa power is an essential part of a sharia rule of law system, and that the sharia responsibility of a Muslim ruler is to serve the public good. This general principle is updated for contemporary realities by adding democracy as the best mechanism by which to identify the public good. The second pillar, inspired by the historical bifurcation of siyasa and fiqh legal realms, states that a diverse marketplace of fiqh (and other religious laws, as needed) should exist in a separate legal realm parallel to that of state law, available on a voluntary opt-in basis for every citizen. This pillar sees legal pluralism as the most important and most unique feature of pre-modern Muslim 20

21 systems, and therefore makes it the core structural foundation of the proposal. A pluralist constitutional structure also has the added benefit of helping to solve the oppositional Islam-versus-secularism politics that dominates today. The final pillar states that a sharia check on state action should review the legitimacy of government action based on the purposes (maqasid) of sharia. This pillar is drawn from principles found in the siyasa shariyya literature, along with an appreciation of contemporary Muslim desires for sharia compliance by their governments. Together, these three pillars form the constitutional framework for a system of government that enables Muslims to have sharia as the law of the land, but not a state that imposes religious doctrine upon its population. A. The First Pillar: Government action must be based on the public good (maslaha amma) The first pillar comes from the classical Islamic legal-political literature that addressed the sharia power of rulers. As discussed above, the fuqaha who wrote in the field of siyasa shariyya centered the legitimacy of siyasa power upon its service of the general public good (maslaha amma). Today, siyasa power comes in the form of presidents and parliaments and kings rather than sultans and caliphs, but the essential nature of the power is the same siyasa authority is held by whoever holds police power, i.e. the government. 29 Thus, the first pillar of the present framework for Islamic constitutionalism is that all government action must be based on the public good. Further, the public good could and I believe should be identified through democratic means. 29 Today, siyasa power is often divided into legislative, executive and judicial power, with complex and different arrangements between them depending upon the given country. But altogether, all government power today could be called the contemporary manifestations of classical siyasa power. 21

22 Serving the public good may not seem at first like a very Islamic demand to make of a Muslim government. It is more commonly assumed that a state s sharia compliance should be measured by comparing its laws to the laws found in classical fiqh. The better the correlation with classical fiqh laws, the more Islamic the government, so goes the thinking. In other words, it is presumed that lawmaking by a Muslim government should be limited to implementing laws already made by God, probably via religious experts who best understand divine scripture. In a word: theocracy. But this is an extremely narrow understanding of sharia limiting it to only with the doctrinal rules of fiqh and ignores the entire field of siyasa shariyya. It also perpetuates oppositional politics between secular and religious forces rather than seeing past them to imagine sharia as a holistic Islamic rule of law. When sharia is understood as a rule of law system that includes siyasa service of the public good, then it becomes clear that sharia legislation is not the only way to make a government Islamic. Instead, serving the public good is what gives sharia legitimacy to state action. If it is appreciated as an Islamic matter that the government should not be selectively enforcing its preferred religious doctrine but instead should be seeking to serve the public good, this could cause a revolutionary change in political discourse in Muslim-majority countries. Rather than debating should we have religious law or not? the people would be asking what serves our public good? Not only does this open up the public conversation to everyone regardless of religious credentials, but it also may lessen the tensions of identity politics that has been part of sharia politics in these countries. 30 After all, if the goal of lawmaking of an Islamic government is the public 30. Support for sharia legislation is often fueled by identity politics such that it has come to symbolize what it is to be a religious Muslim, as against secularism as an extension of cultural imperialism and the 22